Before
the Court are two motions: (1) a motion to dismiss filed by
Defendants Clinton Perry and Walter Berry, (Doc. 16), and (2)
a motion to amend filed by Plaintiff Jeremy Jay Woody. (Doc.
22). As discussed below, it is RECOMMENDED
that the Defendants' motion to dismiss be GRANTED
IN PART and DENIED IN PART such that Plaintiff's
First Amendment claim for prospective injunctive relief be
DISMISSED as moot. It is further
RECOMMENDED that Plaintiff's motion to
amend be GRANTED IN PART and DENIED IN PART
such that Plaintiff be allowed to pursue monetary damages
under Section 504 of the Rehabilitation Act and Title II of
the Americans with Disabilities Act based on events occurring
during the term of Plaintiff's incarceration at Central
State Prison.

BACKGROUND
AND FAILURE TO PROSECUTE

In
October 2016, this Court received from Plaintiff a
standard-form Section 1983 complaint in which Plaintiff
described his life as a deaf inmate at Central State Prison
(CSP). (Doc. 1). Plaintiff informed the Court that his
“native language [is] American Sign Language, ”
(Doc. 1, p. 8), and Plaintiff argued that the lack of video
relay service (VRS) equipment at CSP prevented Plaintiff from
communicating with family and friends for a period of around
three years. (Doc. 1, pp. 6-7). Much of the substance of
Plaintiff's complaint related to a prison grievance
Plaintiff claims to have filed regarding the lack of VRS
equipment at CSP. (Doc. 1, pp. 6-13). Plaintiff also
complained that the lack of sign-language interpreters at CSP
prevented Plaintiff from participating in educational and
training programs, led to multiple wrongful convictions for
prison disciplinary infractions, and made it difficult for
Plaintiff to seek treatment for two medical conditions:
melanoma and a hernia. (Doc. 1, pp. 14-16). As relief,
Plaintiff asked for monetary damages as well as the
assistance of an interpreter, “communications with up
to date technology, ” and “deaf advocates and
deaf services at the prison.” (Doc. 1, p. 17).

On
screening under 28 U.S.C. § 1915A, the Court allowed
Plaintiff to proceed only on a First Amendment claim, and
only against two Defendants: Clinton Perry, the current CSP
warden, and Walter Berry, the former CSP warden. (Doc. 6, pp.
6-7; Doc. 7, pp. 1-2). See Pope v. Hightower, 101
F.3d 1382, 1385 (11th Cir. 1996) (discussing “the First
Amendment right to communicate with family and
friends”). The Court determined that Plaintiff failed
to state claims under Section 1983 for Eighth and Fourteenth
Amendment violations. (Doc. 6, pp. 7-10). The Court also
determined that Plaintiff failed to state claims based on
violations of the Rehabilitation Act (RA) and the Americans
with Disabilities Act (ADA). (Doc. 6, pp. 10-11).

On
August 8, 2017, the same day Defendants Perry and Berry filed
their joint answer, (Doc. 14), Plaintiff was released from
CSP on probation. (Doc. 22, p. 1). After a period of
homelessness, Plaintiff temporarily settled in Hall County,
Georgia. (Doc. 22, pp. 1-3). Plaintiff states that he
informally notified this Court of the change in his address
“as soon as I had access to a videophone.” (Doc.
22, p. 3). In a recent filing, Plaintiff has also informed
the Court that he is “not fluent in English, ”
and that he “only know[s] some words in English.”
(Doc. 22, pp. 4-5).

The
Defendants filed their pending motion to dismiss on September
28, 2017. (Doc. 16). In that motion, the Defendants ask for a
dismissal on two grounds: (1) mootness resulting from
Plaintiff's release, and (2) failure to prosecute under
Federal Rule of Civil Procedure 41(b). Notwithstanding
Plaintiff's itinerancy and his inability to communicate
fluently using the English language, Plaintiff filed a timely
response to the Defendants' motion on October 23, 2017.
(Docs. 17, 18). In that response, Plaintiff also informed the
Court of a new change in his address: Plaintiff now resides
in Clayton County, Georgia. (Doc. 18, p. 1; Doc. 22, p. 4).
Plaintiff subsequently filed a motion to amend, which is also
pending before the Court. (Doc. 22).

Under
the circumstances, a dismissal for failure to prosecute is
not warranted. Eleventh Circuit caselaw establishes a
“strong preference that cases be heard on the merits,
” Wahl v. McIver, 773 F.2d 1169, 1174 (11th
Cir. 1985), and Plaintiff's timely response to the
Defendants' pending motion to dismiss makes a resolution
on the merits possible. Moreover, the record establishes that
Plaintiff faced ample practical difficulties upon his release
from CSP- difficulties arising from Plaintiff's
homelessness and from his lack of English fluency. Given
these difficulties, there is ample reason to conclude that
Plaintiff was unable formally to notify this Court of the
change in his address based neither on Plaintiff's own
misconduct nor on circumstances within Plaintiff's
control. See, e.g., Link v. Wabash R. Co.,
370 U.S. 626, 635 (1962). There is little reason, in other
words, to conclude that Plaintiff deliberately disregarded
this Court's instructions promptly to advise of any
change in address. (Doc. 7, p. 4). Finally, limitations
concerns may also weigh against a dismissal for failure to
prosecute at this late date. See, e.g., Powell
v. Harris, 628 Fed.Appx. 679, 680-81 (11th Cir. 2015).
Accordingly, insofar as the Defendants move for a dismissal
based on Plaintiff's failure to prosecute, it is
RECOMMENDED that the Defendants' motion
to dismiss be DENIED.

MOOTNESS

The
Defendants also move for a dismissal on the ground that
Plaintiff's August 18, 2017 release from CSP renders moot
his request for injunctive relief. (Doc. 16-1, pp. 3-5). As
previously discussed, this Court allowed Plaintiff to proceed
on a First Amendment claim based on allegations that the lack
of up-to-date technology and other “deaf
services” at CSP prevented Plaintiff from communicating
with family and friends during his incarceration. (Doc. 6,
pp. 6-7). The Court allowed Plaintiff to seek only
prospective injunctive relief in order to “end a
continuing violation of federal law.” (Doc. 7, pp.
1-2). With regard to monetary damages, the Court determined
that Plaintiff failed to state a claim. (Doc. 7, p. 2).

The
Defendants are correct in asserting that Plaintiff's
release from CSP renders his request for injunctive relief
moot. See, e.g., Zatler v. Wainwright, 802
F.2d 397, 399 (11th Cir. 1986) (“In view of
Zatler's subsequent release, we find that his claims for
declaratory and injunctive relief are now moot”).
Accordingly, insofar as the Defendants seek a dismissal of
Plaintiff's First Amendment claim for injunctive relief
on grounds of mootness, it is RECOMMENDED
that the Defendants' motion to dismiss be
GRANTED.

LEAVE
TO AMEND

The
mootness resulting from Plaintiff's release is not
dispositive of this action, however, because Plaintiff has
filed a motion for leave to amend in which he seeks (i) to
cure his previously-raised claims, (ii) to raise new claims
relating to his current probation, and (iii) to add three new
Defendants: the Georgia Department of Corrections, the
Georgia Department of Community Supervision, and the Hall
County Sheriff's Office. (Doc. 22). This Court must
“freely give leave” to amend when justice so
requires, Fed.R.Civ.P. 15(a), and requests to amend typically
are denied only for reasons such as undue delay, bad faith or
dilatory motive, repeated failure to cure deficiencies, or
futility. Foman v. Davis, 371 U.S. 178, 182 (1962).
Pro se parties, in particular, have a strong
interest in attempting to cure their claims through an
amendment. See Watkins v. Hudson, 560 Fed.Appx. 908,
911 n.2 (11th Cir. 2014).

In
accordance with the analysis below, it is
RECOMMENDED that Plaintiff's motion to
amend be GRANTED IN PART and DENIED IN PART
such that Plaintiff be allowed to seek monetary damages based
on alleged violations of the RA and the ADA during the term
of Plaintiff's incarceration at CSP.

A.
First Amendment

As
previously discussed, the Court allowed Plaintiff to seek
prospective injunctive relief against Defendants Perry and
Berry based on Plaintiff's inability to communicate with
family and friends while incarcerated. Plaintiff's
subsequent release from CSP renders his request for
injunctive relief moot. The Court further ruled, on
screening, that Plaintiff failed to state a claim for
monetary damages because “Plaintiff failed to specify
which Warden was responsible for [the denial of deaf
communication services] or allege any other personal action
by either Defendant Perry or Berry.” (Doc. 7, p. 2).
See, e.g., Brown v. Crawford, 906 F.2d 667,
671 (11th Cir. 1990) (“Supervisory liability occurs
either when the supervisor personally participates in the
alleged constitutional violation or when there is a causal
connection between actions of the supervising official and
the alleged constitutional deprivation”).

Plaintiff's
amended complaint does not address the Court's concerns,
and it therefore does not cure Plaintiff's First
Amendment deaf communication claim. While Plaintiff's new
allegations provide additional details regarding the general
lack of deaf services at CSP, Plaintiff's new allegations
do not sufficiently show any personal action or causal
connection on the part of Defendants Perry and Berry, or any
other identifiable individual. See, e.g., (Doc. 22,
p. 5) (“I tried to explain [my inability to use a
teletypewriter (TTY)] to the guards many times, but they did
not understand”); (Doc. 22, p. 5) (I again asked for
help so I could use the TTY machine to contact my hearing
family and friends[, but the] officers said no”); (Doc.
22, p. 6) (“I filed a grievance about not having any
access to telephones in prison …. The prison denied
this grievance”); (Doc. 22, p. 6) (“The prison
violated my rights under the First Amendment”).
Accordingly, insofar as Plaintiff sought to reinstate a First
Amendment deaf communication claim for monetary damages,
Plaintiff's motion to amend should be DENIED as
futile.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Plaintiff&#39;s
new allegations do appear to make out a First Amendment
retaliation claim against Deputy Warden John Fagan, whom
Plaintiff named as a Defendant in his initial Complaint, but
this retaliation claim is barred by the applicable two-year
statute of limitations. Williams v. City of Atlanta,
794 F.2d 624, 626 (11th Cir. 1986). In his amended complaint,
Plaintiff asserts that Defendant Fagan &ldquo;put [Plaintiff]
in the hole, &rdquo; meaning solitary confinement, &ldquo;as
punishment&rdquo; for filing grievances regarding a
non-functioning teletypewriter. (Doc. 22, p. 11). Eleventh
Circuit caselaw establishes that prison grievances regarding
conditions of confinement are protected speech, and that the
First Amendment proscribes disciplinary action taken in
response to such grievances. O&#39;Bryant v. Finch,
637 F.3d 1207, 1212 (11th Cir. 2011). By Plaintiff's own
description, though, the alleged retaliatory action occurred
“[i]n the summer of 2015.” (Doc. 22, p. 11).
Under the prison mailbox rule, Plaintiff filed his amended
complaint on November 1, 2017, more than two years after the
alleged ...

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